FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-30124
Plaintiff-Appellee,
v. D.C. No.
1:03-cr-00165-EJL-1
JEFFREY WHITLOCK,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Argued and Submitted
January 12, 2011—Seattle, Washington
Filed April 28, 2011
Before: Susan P. Graber, Raymond C. Fisher and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Fisher
5555
5558 UNITED STATES v. WHITLOCK
COUNSEL
Dennis M. Charney, Charney & Associates, PLLC, Eagle,
Idaho, for the defendant-appellant.
Aaron N. Lucoff, Assistant United States Attorney, Boise,
Idaho, for the plaintiff-appellee.
OPINION
FISHER, Circuit Judge:
We held in United States v. Leonard, 483 F.3d 635, 638-39
(9th Cir. 2007), that “sentencing procedures for probation and
supervised release violations are primarily governed by Rule
32.1 of the Federal Rules of Criminal Procedure, not Rule
32.” (Emphasis added.) This case presents a situation where
Rule 32.1 does not speak to the particular question at issue —
whether probation officers’ sentencing recommendations fol-
lowing the revocation of supervised release must be disclosed.
We conclude that Rule 32(e)(3) logically fills in the gap.
Therefore, like post-conviction sentencing recommendations,
post-revocation sentencing recommendations must be dis-
closed unless the district court directs otherwise “[b]y local
rule or by order in a case.” Fed. R. Crim. P. 32(e)(3). Accord-
ingly, United States v. Baldrich, 471 F.3d 1110 (9th Cir.
2006), applies here. We hold that the district court complied
with Baldrich’s requirement that the court disclose any factual
information in the confidential recommendation on which it
UNITED STATES v. WHITLOCK 5559
relied in sentencing. See id. at 1113-14. We further hold that
Rule 32(e)(3) and its implementing local counterpart, District
of Idaho Local Criminal Rule 32.1, comport with the Equal
Protection Clause, so there was no violation of Whitlock’s
constitutional rights.
Background
In October 2003, Jeffrey Whitlock pled guilty to possession
of a controlled substance under 21 U.S.C. § 844(a), unlawful
possession of a firearm under 18 U.S.C. § 922(g)(3) and
unlawful acquisition of a firearm under 18 U.S.C.
§ 924(a)(1)(A) and 18 U.S.C. § 2. He was sentenced to 60
months of incarceration to be followed by a three-year term
of supervised release. Whitlock began supervised release on
November 7, 2007. While under federal supervision, he was
arrested and charged in Ada County, Idaho, for a number of
state offenses. Having been convicted on some of those
charges, Whitlock is currently serving time in the Ada County
jail.
In light of Whitlock’s arrests and convictions, the govern-
ment petitioned the district court to revoke his federal super-
vised release. Before the revocation hearing, the probation
office provided a violation of supervised release report (SRR)
to Whitlock, the government and the district court. The SRR
calculated Whitlock’s sentencing guidelines range at six to 12
months. The SRR did not contain the probation officer’s sen-
tencing recommendation, which was submitted separately to
the court. Whitlock did not object to the SRR, and at the revo-
cation hearing he admitted to violating his supervised release
by using methamphetamine, being convicted of domestic vio-
lence and driving under the influence.
The parties agreed that a six-month sentence, at the low end
of the applicable range, was appropriate, but submitted to the
district court the question whether that sentence should be
served concurrently with or consecutively to Whitlock’s state
5560 UNITED STATES v. WHITLOCK
sentence. Before making a sentencing argument, Whitlock’s
counsel asked the district court to release the probation offi-
cer’s sentencing recommendation and to continue the hearing
until he could consider those comments. The district court
denied the request, explaining:
[T]hat is the case in every case with this Court. I
don’t know about the other judges, but I do not
require that to be disclosed to either the Government
and/or the Defense so that the probation people can
advise the Court as to what their feelings are. Many
times we have the Defendant released to supervision,
and if some of those recommendations are made
privy to the Defendant, it just gets them off to the
wrong start.
I rest on what my comments are in Court as to why
I sentence a person either to probation or to a sen-
tence of incarceration, not on a recommendation of
a probation officer.
The district court ultimately revoked Whitlock’s supervised
release and sentenced him to six months in prison, with three
months to run concurrently with his state sentence and the
remaining three months to run consecutively, followed by 30
months’ supervised release.
Whitlock appeals the denial of his request to review the
probation officer’s sentencing recommendation. He argues
that Federal Rule of Criminal Procedure 32(e)(3), which per-
mits district courts to refuse to disclose probation officers’
sentencing recommendations, and its implementing local
counterpart, District of Idaho Local Criminal Rule 32.1, vio-
late equal protection. The government counters that Federal
Rule of Criminal Procedure 32(e)(3) has no application here
and thus Whitlock’s equal protection challenge is moot except
as to Local Criminal Rule 32.1. We disagree that Rule 32 has
no application to Whitlock’s revocation sentencing hearing,
UNITED STATES v. WHITLOCK 5561
but hold that Rule 32(e)(3), as well as District of Idaho Local
Criminal Rule 32.1, comport with equal protection.
Jurisdiction and Standard of Review
We have jurisdiction over Whitlock’s appeal under 28
U.S.C. § 1291 and 18 U.S.C. § 3742. See United States v.
Huerta-Pimental, 445 F.3d 1220, 1222 (9th Cir. 2006). We
review de novo a challenge to the constitutionality of the Fed-
eral Rules of Criminal Procedure, as well as a district court’s
compliance with Rule 32. See Baldrich, 471 F.3d at 1112. We
are not persuaded by the government’s argument that we
should review only for plain error because Whitlock failed to
preserve his objection. Whitlock’s counsel expressly asked
the district court to disclose the probation officer’s sentencing
recommendation, and when the district court refused, counsel
stated “for the record” that although he would like to review
the recommendation before proceeding with argument, he
would go forward without it given the court’s denial of his
request. This colloquy was sufficient to preserve Whitlock’s
objection for appeal.
Discussion
I. The Relationship Between
Federal Rules of Criminal Procedure 32 and 32.1
[1] Whitlock argues that Federal Rule of Criminal Proce-
dure 32(e)(3) and its implementing local rule, District of
Idaho Local Criminal Rule 32.1, violate equal protection.
Rule 32(e)(3) states:
(e) Disclosing the Report and Recommendation.
...
(3) Sentence Recommendation. By local rule or by
order in a case, the court may direct the probation
5562 UNITED STATES v. WHITLOCK
officer not to disclose to anyone other than the court
the officer’s recommendation on the sentence.
The District of Idaho Local Criminal Rule 32.1 provides, in
relevant part:
(a) Presentence Report, Sentencing Recommenda-
tion and Confidentiality.
...
(2) In addition to the presentence report, the proba-
tion officer will submit a separate document entitled
“Sentencing Recommendation” to the Court. The
Sentencing Recommendation is for the benefit of the
Court and will not be disclosed to the government,
the defendant, or defendant’s counsel or to any other
person or party, unless authorized by the sentencing
judge, as provided in subsection (3).
(3) The Sentencing Recommendation may be dis-
closed to the government and defense counsel if
authorized by the sentencing judge. Such authoriza-
tion shall be communicated to the Chief United
States Probation Officer in writing or electronically
and shall specify whether the authorization applies to
all of the individual sentencing judge’s cases or to
selected cases only. The sentencing judge may
revoke the authorization at any time by so notifying
the Chief United States Probation Officer in writing
or electronically.
...
(5) Probation reports, violation of supervised release
reports, and sentencing recommendations prepared
for these reports are governed by these same provi-
sions.
UNITED STATES v. WHITLOCK 5563
The government argues that Whitlock’s revocation hearing
was governed by Federal Rule of Criminal Procedure 32.1
rather than Rule 32, and therefore Whitlock’s challenge to
Rule 32(e)(3) is moot.1 Rule 32.1 provides in relevant part:
(b) Revocation.
...
(2) Revocation Hearing. Unless waived by the per-
son, the court must hold the revocation hearing
within a reasonable time in the district having juris-
diction. The person is entitled to:
(A) written notice of the alleged violation;
(B) disclosure of the evidence against the person;
(C) an opportunity to appear, present evidence,
and question any adverse witness unless the court
determines that the interest of justice does not
require the witness to appear;
(D) notice of the person’s right to retain counsel
or to request that counsel be appointed if the person
cannot obtain counsel; and
(E) an opportunity to make a statement and pre-
sent any information in mitigation.
As an initial matter, we must determine whether Rule
32(e)(3) applies to Whitlock’s case. We conclude that it does.
1
For ease of reference, Federal Rules of Criminal Procedure 32 and 32.1
will hereinafter be referred to as “Rule 32” and “Rule 32.1,” and the Dis-
trict of Idaho Local Criminal Rule 32.1 will be referred to as “Local Rule
32.1.”
5564 UNITED STATES v. WHITLOCK
In United States v. Carper, 24 F.3d 1157 (9th Cir. 1994),
we held that even though Rule 32.1 did not expressly recog-
nize the right to allocution at supervised release revocation
sentencing hearings, the “provisions of Rule 32(a)(1),” which
made the right to allocution mandatory at post-conviction sen-
tencing hearings, also “appl[ied] to sentencing after revoca-
tion of supervised release.” Id. at 1162. Rule 32.1
subsequently was amended, effectively codifying the holding
in Carper by explicitly enumerating the right to allocution at
supervised release revocation sentencing hearings. See Fed. R.
Crim. P. 32.1(b)(2)(E).
[2] Following these amendments, we clarified in Leonard
that “sentencing procedures for probation and supervised
release violations are primarily governed by Rule 32.1 of the
Federal Rules of Criminal Procedure, not Rule 32.” 483 F.3d
at 638-39 (emphasis added). We now conclude, as Leonard
contemplated, that although Rule 32.1 “primarily” governs
Whitlock’s post-revocation sentencing, id., to the extent Rule
32.1 is silent as to the disclosure requirements governing
supervised release revocation sentencing recommendations,
we may look to Rule 32(e)(3). Doing so, we conclude that, at
base, the same regime governing disclosure of probation offi-
cers’ sentencing recommendations should apply to both post-
conviction and post-revocation sentencing. We thus proceed
to the merits of Whitlock’s challenge.
II. Federal Rule of Criminal Procedure 32(e)(3)
and District of Idaho Local Criminal Rule 32.1
Comport with Equal Protection
[3] Whitlock argues that Rule 32(e)(3) and its implement-
ing Local Rule 32.1 violate equal protection. We disagree. His
argument is foreclosed by United States v. Baldrich, 471 F.3d
1110, 1113-14 (9th Cir. 2006), which upheld the constitution-
ality of Rule 32(e)(3) in the face of a due process challenge.
Whitlock makes essentially the same argument that our court
rejected in Baldrich, but attempts to recast it in equal protec-
UNITED STATES v. WHITLOCK 5565
tion terms. As this court and the Supreme Court have recog-
nized, however, and as Whitlock’s argument demonstrates,
“[i]n challenges to sentencing regimes, ‘an argument based on
equal protection essentially duplicates an argument based on
due process.’ ” United States v. Marcial-Santiago, 447 F.3d
715, 719 n.5 (9th Cir. 2006) (quoting Chapman v. United
States, 500 U.S. 453, 465 (1991)).
[4] Just as Whitlock does here, the Petitioner in Baldrich
questioned whether it was constitutional for a district court to
refuse to disclose a probation officer’s sentencing recommen-
dation. See 471 F.3d at 1113. We held that due process was
satisfied when the probation officer’s recommendation was
kept confidential under Rule 32(e)(3) so long as any factual
information in the recommendation that the court relied upon
in sentencing was disclosed. See id. at 1113-14; see also
United States v. Gonzales, 765 F.2d 1393, 1398 (9th Cir.
1985). We hold that the same result obtains here, and thus
Whitlock’s equal protection challenge to Rule 32(e)(3) and
Local Rule 32.1 fails.
We would reach this result even without Baldrich.
Whitlock’s claim “involves neither a fundamental right nor a
suspect class,” and is therefore subject to rational basis
review. Nurre v. Whitehead, 580 F.3d 1087, 1098-99 (9th Cir.
2009), cert. denied, 130 S. Ct. 1937 (2010). Contrary to
Whitlock’s argument, there is no “classification” at issue here.
Defendants are randomly assigned to district court judges. As
Whitlock acknowledges, although the two district judges in
the District of Idaho have different policies governing disclo-
sure of probation officers’ sentencing recommendations, both
apply their policies to all the cases that come before them.
Such random assignment cannot be understood to target a sus-
pect class. Furthermore, neither prisoners nor “persons con-
victed of crimes” constitute a suspect class for equal
protection purposes. See Glauner v. Miller, 184 F.3d 1053,
1054 (9th Cir. 1999) (per curiam) (“[P]risoners are not a sus-
pect class . . . .”); United States v. Litteral, 910 F.2d 547, 552
5566 UNITED STATES v. WHITLOCK
(9th Cir. 1990) (“[P]ersons convicted of crimes are not a sus-
pect class.” (internal quotation marks omitted)).
In addition, there is no fundamental right to receive a pro-
bation officer’s supervised release revocation sentencing rec-
ommendation; indeed, there is not even a fundamental right
to receive parole consideration at all. See Mayner v. Callahan,
873 F.2d 1300, 1302 (9th Cir. 1989) (“[P]arole consideration
is not a fundamental right requiring a higher level of scruti-
ny.”); see also Swarthout v. Cooke, 131 S. Ct. 859, 862
(2011) (per curiam) (“There is no right under the Federal
Constitution to be conditionally released before the expiration
of a valid sentence, and the States are under no duty to offer
parole to their prisoners.”); United States v. Hall, 419 F.3d
980, 985 n.4 (9th Cir. 2005) (explaining that the analyses of
the rights afforded at parole and supervised release revocation
hearings are “constitutionally indistinguishable”).
[5] Because the rules Whitlock challenges neither burden
a fundamental right nor target a suspect class, rational basis
review applies and the rules are constitutional if they “bear[ ]
a reasonable relationship to a legitimate governmental inter-
est.” United States v. LeMay, 260 F.3d 1018, 1031 (9th Cir.
2001). The district court identified two rational bases: First,
confidentiality is maintained “so that the probation people can
advise the Court as to what their feelings are.” Second,
“[m]any times we have the Defendant released to supervision,
and if some of those recommendations are made privy to the
Defendant, it just gets them off to the wrong start.” Enhancing
the effectiveness of probation officers who are overseeing
persons on supervised release and fostering honest sentencing
recommendations are both legitimate governmental interests
that are served by keeping such recommendations confiden-
tial. Rule 32 and Local Rule 32.1 survive rational basis
review.
III. The District Court Comported with the Rules
[6] Even if the rules themselves are constitutional, if the
district court did not abide by them by providing Whitlock
UNITED STATES v. WHITLOCK 5567
with a summary of any factual information relied on in sen-
tencing that did not appear in the SRR, that could constitute
a due process violation. See Baldrich, 471 F.3d at 1114-15;
Gonzales, 765 F.2d at 1398-99. As we did in Baldrich, “[i]n
order to determine whether the district court complied with
Rule 32’s disclosure requirements in [this] case, we have
reviewed the confidential sentencing recommendation submit-
ted to the district court,” and have determined that, with one
possible exception, all facts in the confidential sentencing rec-
ommendation were discussed in the presentence report or in
open court at the sentencing hearing. 471 F.3d at 1114-15.
[7] Assuming the district court did not disclose one fact,
that omission does not rise to the level of a due process viola-
tion in this case. The court was not obligated to disclose evi-
dence on which it did not rely. We held in Gonzales that a
statement by a judge “that he had disclosed all the information
on which he relied” was sufficient to demonstrate compliance
under Rule 32. See 765 F.2d at 1398 (emphasis added). At the
hearing, the district court specifically stated in response to
Whitlock’s request for disclosure of the confidential sentenc-
ing recommendation, “I rest on what my comments are in
Court as to why I sentence a person either to probation or to
a sentence of incarceration, not on a recommendation of a
probation officer.” Whitlock has “come forward with no evi-
dence other than the challenged result to suggest that
improper facts were considered.” Id. at 1399. Furthermore,
the challenged result is a sentence at the low end of the appli-
cable range, and the district court ordered that half the sen-
tence would run concurrently with Whitlock’s state sentence
despite the government’s recommendation that the sentences
run consecutively. Accordingly, we credit the district court’s
assurance that Whitlock’s sentence rested only on facts it dis-
cussed at the hearing or that were disclosed in the SRR. There
was no constitutional violation. See Gonzales, 765 F.2d at
1398-99.
5568 UNITED STATES v. WHITLOCK
Conclusion
[8] The decision of the district court is affirmed. Rule
32(e)(3) and its implementing Local Rule 32.1 satisfy equal
protection both facially and as applied.
AFFIRMED.